FIFTH SECTION
Application no. 19336/04
EAST/WEST ALLIANCE LIMITED
against Ukraine
lodged on 27 May 2004
Additional questions
Has there been an interference with the applicant company's peaceful enjoyment of possessions as regards its six An-28 and eight L-410 aircrafts, within the meaning of Article 1 of Protocol No. 1, in particular, but not exclusively, in view of the following:
- the seizure of the aircrafts' documentation from the applicant company's office in January 2001;
- the seizure of the An-28 and L-410 aircrafts on 30 March 2001;
- the failure of the authorities to preserve the aircrafts while they were classified as material evidence in criminal proceedings (pursuant to the decisions of the tax police of 17 and 26 April 2002 – as regards the criminal proceedings against the ATI company's officials; as well as 6 October 2010 – as regards the criminal proceedings against the Ukrimpeks-2000 officials);
- the decision of the Bila Tserkva Town Administration of 16 September 2002 to declare the six An-28 aircrafts ownerless property and to authorise their sale on that ground (while this issue was raised in the initial communication of the application on 6 April 2010, your Government have not commented on it in their observations and are therefore repeatedly invited to do so);
- the sale of the An-28 aircrafts to third parties before completion of the judicial proceedings brought by the applicant company challenging the authorities' decision to declare those aircrafts ownerless property and while the aircrafts were under the court impoundments of 10 September 2001 and 3 June 2003 (this issue was also raised in part in the initial communication, but yet remained without comments from your Government);
- the continued security guard of the An-28 aircrafts by the tax police from July 2002 up to now (or at least till March 2010 – as confirmed by the documentation in the case file) – that is including after the judicial decisions of 3 February 2003, 7 February 2005 and 25 September 2006 ordering those aircrafts to be returned to the applicant company;
- the damage to the six An-28 and three L-410 aircrafts and their equipment vandalising, as well as the disappearance of the five L-410 aircrafts, while they were under the authorities' control;
- the decision of the Cherkasy City Council of 24 July 2008 authorising the municipal enterprise “Cherkasy Airport” to sell out the eight L-410 aircrafts belonging to the applicant company at a public auction (apparently, five of them were eventually sold) – that is after the judgment of the Kyiv City Commercial Court of 24 May 2006 ordering the tax authorities to return those aircraft to the applicant company became final on 1 April 2008;
- the non-enforcement of the final judicial decisions ordering the return of the aircrafts to the applicant company (your Government are repeatedly invited to comment on this issue given that, following their observations of 27 July 2010 in which your Government referred to the insignificant length of the non-enforcement period at the time, the situation has apparently not changed and the decisions in question have never been enforced)?
Having regard to the above issues, has the interference amounted to de facto deprivation of the applicant company of its possessions? If so, was it in the public interest, in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1?
Was that interference (deprivation) necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties?
Did that interference (deprivation) impose an excessive individual burden on the applicant company (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
Did the applicant company have at its disposal effective domestic remedies for the above complaints, as required by Article 13 of the Convention?
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